Have you got an exit plan? The importance of estate planning

According to the Productivity Commission, about half of final estates goes to the ‘kids’, average age 50. The rest goes mostly to a surviving spouse or other family (such as grandkids or nieces and nephews) and friends. Only 2% goes to charity.

Simple. What could possibly go wrong?

Plenty as it turns out, especially where the final resting place of super is concerned.

These well-known court cases show how easily the best laid plans can unravel.

The lessons of history

The two court cases above highlight the importance of not just planning how you want your estate and your super to be distributed when you die but following through with correct documentation.

Some of the key issues to be mindful of where your super is concerned are:

The importance of binding death benefit nominations

Erwin Katz’s mistake was leaving only one of his children with control over his super fund. Even so, if he had made a binding death benefit nomination his wishes would have been carried out regardless of who took control of his fund.

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If you have a valid binding death benefit nomination in place when you die, the trustee of your fund (whether it’s a public offer fund or an SMSF) will be bound to pay your super benefit to the people you specify in the proportions you nominate.

To be valid, a binding death benefit nomination must be renewed every three years unless you have a non-lapsing binding nomination. Non-lapsing nominations are not offered by all funds, so check if your fund or SMSF will allow it.

Super is not an estate asset

Your super death benefit is not covered by your Will. You can, however, make a binding death benefit nomination instructing your super trustee to pay your death benefit to your estate, where it will be distributed according to your Will.

If Francesca had made a binding death benefit nomination to divide her super benefits equally between her four children, her wishes would have been carried out.

Whether you have an SMSF or are a member of a large fund regulated by the Australian Regulation Prudential Authority (APRA), you need a valid Will and a valid death benefit nomination, preferably one that is binding. Make sure they’re crafted in such a way that one doesn’t cancel the other out. And remember to update both whenever your circumstances or those of your children change.

It’s also important to understand that only certain people will be eligible to receive your super death benefits, and that there will be different tax consequences depending on the age of the beneficiaries you nominate and/or their relationship to you. 

Mistakes can be costly

In both cases above, Francesca and Erwin had told their family who they wanted to receive their super when they died and in what proportions. Like many parents, they wanted their estate split evenly between their adult children.

But a lack of correct documentation meant their wishes weren’t carried out. The legal disputes that followed were not only financially costly, presumably the emotional fallout was equally devastating.

Professional advice may be cost-effective

Estate planning and the interaction between Wills and super can be complex. Today’s families can be equally complex, with blended families and divorce increasingly common.

In many cases, timely professional advice from your family lawyer/solicitor, financial adviser and/or accountant could save your family going through the uncertainty and emotional stress of a disputed estate.

SMSFs in a league of their own

If you have an SMSF, make sure the trust deed is up to date. Also ensure you have mechanisms in place to prevent your surviving partner or one of your children abusing control over your death benefits to deprive your chosen beneficiaries of their inheritance.

And remember, objections to SMSF death benefit payouts can’t be taken to the Australian Financial Complaints Authority (AFCA) but will end up in the courts.